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In re New Jersey Department of Environmental Protection Conditional Highlands Applicability Determination

Superior Court of New Jersey, Appellate Division

September 26, 2013

IN THE MATTER OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION CONDITIONAL HIGHLANDS APPLICABILITY DETERMINATION, PROGRAM INTEREST NO. 435434

Argued September 24, 2012

On appeal from the New Jersey Department of Environmental Protection.

Neil Yoskin argued the cause for appellant Friends of Fairmount Historic District (Sokol, Behot & Fiorenzo, attorneys; Mr. Yoskin, of counsel and on the brief; Steven Siegel, on the brief).

Lisa G. Daglis, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Daglis, on the brief).

Christopher J. McAuliffe argued the cause for respondent Jersey Central Power & Light Company (Morgan, Lewis & Bockius, LLP, attorneys; Mr. McAuliffe, on the brief).

Courter, Kobert & Cohen, attorneys for respondent Township of Tewksbury (Michael S. Selvaggi, of counsel; Richard W. Wenner, on the brief).

Susan J. Kraham argued the cause for amicus curiae New Jersey Highlands Coalition (Morningside Heights Legal Services, Inc., Environmental Law Clinic, Columbia University, attorneys; Ms. Kraham and Edward Lloyd, on the brief).

Before Judges Graves, Espinosa and Guadagno.

OPINION

ESPINOSA, J.A.D.

Friends of Fairmount Historic District (FFHD) appeals from a final agency decision of the Department of Environmental Protection (DEP or the Department). This is FFHD's second challenge to the construction of a 230 kV/12.5 kV electrical substation by Jersey Central Power & Light (JCP&L) in Tewksbury Township. The substation was built to address repeated power outages in Tewksbury caused by an increased demand for electricity. For the reasons that follow, we affirm.

Previously, FFHD appealed from a final determination of the Board of Public Utilities (BPU or the Board) that found the substation necessary and authorized JCP&L to proceed with construction of the substation. We briefly summarize the facts and conclusions set forth in our unpublished opinion, In re Appeal of Jersey Cent. Power & Light Co., No. A-2150-09 (App. Div. Feb. 10, 2011) (In re JCP&L), certif. denied, 207 N.J. 65 (2011).

JCP&L filed an application with Tewksbury's Land Use Board (TLUB) seeking preliminary and site plan approval and certain variances required for the construction of the substation. TLUB denied the application in December 2008 and, thereafter, issued a resolution memorializing its decision.

In January 2009, JCP&L filed a petition with BPU pursuant to N.J.S.A. 40:55D-19, seeking authorization to construct the substation, notwithstanding TLUB's denial of its application. BPU found the substation necessary, noting that residential customers in the area increased by thirty-percent between 1999 and 2006, resulting in twenty-percent overloads during peak periods, and that the substation as planned and placed would help to ensure adequate voltage levels. On September 14, 2009, the Board issued a Decision and Order authorizing JCP&L to construct, install and operate the substation.

In its appeal from that decision, FFHD argued that BPU's decision should be reversed because it: gave insufficient weight to TLUB's decision and analysis in reviewing JCP&L's appeal; should have deferred to the analysis and determination of TLUB in its evaluation of the effect of the proposed substation on the community zone plan; failed to adequately analyze the safety issues while granting relief; failed to adequately analyze the economic impact of the proposed substation on the property values of the adjacent homes and the historic district; and failed to sufficiently examine the alternative site analysis provided by JCP&L.

We rejected these arguments, concluding that BPU undertook the analysis required by In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358 (1961), and that there was sufficient credible evidence to support the Board's findings and decision. In re JCP&L, supra, at 13.

The substation has now been built on property that lies within JCP&L's existing right-of-way, under the transmission lines carrying 230 kV of electricity from Chester to Glen Gardner that were in place. The property is also within a residential zone in Tewksbury's Lower Fairmount National Historic District, as well as in the Preservation Area established by the Highlands Water Protection and Planning Act (the Highlands Act), N.J.S.A. 13:20-1 to -35; N.J.S.A. 13:20-7(b). In this appeal, FFHD challenges the final agency decision of DEP to grant JCP&L an exemption from the Highlands Act for the substation.

In October 2007, JCP&L applied to DEP's Division of Watershed Management for a Highlands Applicability Determination (HAD), N.J.A.C. 7:38-2.4, that the substation was exempt from the Highlands Act. N.J.S.A. 13:20-28(a)(11) provides an exemption "from the provisions of this act, the regional master plan, any rules or regulations adopted by the Department of Environmental Protection pursuant to this act, or any amendments . . ." for

the routine maintenance and operations, rehabilitation, preservation, reconstruction, repair, or upgrade of public utility lines, rights of way, or systems, by a public utility, provided that the activity is ...

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